From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Monday, 23 March 2015

A Kat may look at an Administrative Council: an open letter to the AC

Regular readers of this weblog will by now be well aware that a number of issues concerning the European Patent Office and its governance have featured in many of its recent posts. The members of the blog team look forward to a time when this will no longer be the case, a time when the only sound that emanates from the Office is the quiet purr of an efficient and well-maintained engine that examines, grants, rejects or fine-tunes applications for patents in a manner that engenders confidence among its users, job satisfaction of its functionaries and trust for those who invest in bringing new inventions to the marketplace.  Meanwhile, things are not what they might be.  This being so, Merpel takes this opportunity to write an open letter to the Administrative Council (AC), which has responsibility for supervising the operations of the Office, in an attempt to articulate with the utmost clarity -- and without pointing any fingers of blame in any particular direction -- in the hope that it will help the AC's members to focus with greater facility on the matters that appear to her to be most in need of their attention.  This is what Merpel writes:
Dear Administrative Council,

You are meeting this week at a crucial time in the history of the European Patent Organisation.  There is staff unrest resulting from the ongoing programme of reforms, and the Organisation faces problems concerning the constitutional position of the Boards of Appeal.  The oversight and supervision of the European Patent Office (EPO) is down to you and you alone.  The European and indeed worldwide patent community looks to you to act.

The European Patent Convention (EPC) is drafted with only a two-way separation of powers within the European Patent Organisation between the Administrative Council as the legislature and overseeing body on the one hand, and the EPO headed by the President as the executive agency on the other.  The Boards of Appeal, which must be judicially independent if their decisions are to be recognised by national courts as being compliant with legal norms and fundamental human rights, currently sit in an uneasy constitutional position as being part of the Office, but with their independence legally guaranteed by Article 23 EPC.  The proposal to make the Boards fully autonomous as a third organ of the Organisation has apparently been consigned to the dustbin of good intentions.

The Boards of Appeal, despite not being fully administratively coupled from the Office, have never previously shown themselves to be hesitant in taking decisions that might be administratively unpopular or that might lead to decreased administrative efficiency.

On the other hand, there is growing a fear that the Administrative Council is not effectively independent, despite its constitutional autonomy.  Observers are concerned that you have grown to rubber-stamp the proposals put to you by the President.  In doing so, you may be beginning to fail in the vital constitutional task which has been entrusted to you.

No doubt the drafters of the EPC never doubted that a Council made up of, effectively, the competitors of the EPO would rigorously examine and oversee its management.  Perhaps they did not foresee the current situation in which many national patent offices would become so reliant on revenue deriving directly or indirectly from the EPO.

You have more information at your disposal than that which is available to you from a fictional feline, but Merpel begs to suggest that you consider all of the following propositions, for which, from the information that she has seen, there are strong arguments.

In relation to the Boards of Appeal (according to proposals here, here and here):
  • REJECT the proposal to establish the Board of Appeal Committee (BOAC) to supervise the Boards of Appeal, which would place the Boards under the supervisory oversight of the Administrative Council, thereby tying the judiciary to the legislature, and depriving the Presidium of the Boards of Appeal of most of its functions.
  • REJECT the proposal for a career structure which would routinely see Board of Appeal members dismissed after their five-year term without being given employment by the Office or permitted (according to the new proposed conflict of interest rules) from immediately taking the other employment for which they may be qualified.
  • REJECT any plan to move the Boards to another location which would inevitably result in the loss of members from an already depleted cadre.
  • RESTORE the Boards of Appeal to full manpower as soon as possible
In relation to employees generally
  • RESCIND the Strike Regulations which place the possibility to strike or hold a strike ballot at the discretion of the President.
  • REFORM the changes to the sick leave and invalidity provisions, which are oppressive to those who are unfortunate enough to require them.
  • REFORM the Investigation Guidelines, which are Kafkaesque to most European observers
  • RECONSIDER the overall programme of reform to the career structure.  Practically no-one doubts the need for reform to the employment and service conditions of Examiners and other employees, but the speed and style of implementation are causing an unacceptable level of unrest. 
  • ENSURE that staff representative numbers are brought back to full strength, as it appears that there are vacancies which the management refuses to fill, leaving staff under-represented on committees whose standing rules require that they should have an equal voice.  
  • COMPLY with the judgment of the Court of Appeal of the Hague of 17 February 2015 to provide basic levels of labour rights to staff across the Organisation.
At a time of changes to the governance of the EPO and the career structure of its employees, there needs to be full dialogue with staff representatives, but this seems to have broken down entirely.  Proper consultation needs to re-established as a top priority.  EPO employees are in a particularly delicate position because of their lack of access to domestic welfare services, and this needs to be respected.

Doubtless many of you have been familiar with reform of the administration of the patent offices of your home countries which in many cases have also been difficult and painful, and perhaps therefore do not see cause for concern in the current serious degree of industrial unrest in the European Patent Office.  But because of the special and unique position of the EPO, many observers, users, and other stakeholders hope that you will view the present situation with the utmost gravity.

The staff in the EPO look to you for fair conditions of employment. They do not enjoy the same basic protections as national civil servants in your countries, which is why the Court of Appeal in the Hague ordered the EPO to implement some basic changes that would allow the staff union to operate effectively. The EPO has refused to accept that judgment on the dubious ground that it would need to have regard to every labour law in each of the 38 member states. The EPO has employees in just four countries, all of which are EU member states, and it is not beyond the wit of an organisation of the EPO's size to operate in compliance with the laws common to those four countries. This would go a long way to restoring the EPO's reputation as regards treatment of staff.

Even in those areas where the staff were always intended to have a strong voice, such as on committees like the GCC, their representative numbers have been depleted and the duly elected replacements have not been recognised by management.  It is not apparent why this should be so, and it leaves the staff in what looks like an engineered minority when discussing matters that affect them. There are elected alternates, but it appears that they are neither notified of such meetings nor admitted if they try to take an empty seat in place of an absent/resigned member. The healthcare reforms were voted through at a meeting where the staff were at such a disadvantage.
Concerning the ongoing disciplinary matter relating to a member of the Boards of Appeal, it is hoped that there will be an outcome which is seen by all to be fair and just.

It is the function of the Administrative Council to hold the President and senior management of the EPO to account, and Europe is watching to see signs that you are doing this.  Members of the EU are also watching with concern since the EPO is crucial to the future success of the Unitary Patent.

Please let us see some sign that you are doing the right thing.

Yours sincerely,

Merpel
While a Kat may look at a King an Administrative Council, Merpel believes that AC delegates may also respond to human exhortation, and reminds readers in EPC contracting states that they may find their Administrative Council delegates here.  
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105 comments:

Old man said...

Dear Kat,

Thanks for such a nice plea. It is tragic to see that what has build up in spite of all difficulties for quite a number of years risks to be simply destroyed merely because some members of the higher management of the EPO want to show they know better what is good.
The AC should think twice continuing giving its support to such endeavours which endanger what has become recognised a success story.
Members of the AC should go further than short term balance sheets, but should support long term viability of the EPO.
That an organism which does not evolve may eventually die is not at stake. The long term viability of the EPO has to be insured, but this does not mean that the ideas of a small number of people are the only right ones.
The "managers" of the EPO have not better but the same intellectual capacities or abilities than the people they are meant to manage, no more and no less, but they forget this. Thinking differently does end up in a deep lack of respect for those actually doing the work.
That there should be a clear separation between the judiciary and the executive should be obvious to such allegedly learned people. This needs more than lip service.
It is in the hands of the AC to change the situation, and that needs some guts, but it should not withhold its members to fully take their responsibility.
Complaining later that all this was not what they wished, but let happen will not exempt them from the need to act.

Garfield said...

Merpel wrote: REJECT the proposal to establish the Board of Appeal Committee (BOAC) to supervise the Boards of Appeal, which would place the Boards under the supervisory oversight of the Administrative Council, thereby tying the judiciary to the legislature, and depriving the Presidium of the Boards of Appeal of most of its functions.

Merpel, I'm confused. Surely the problem with the current arrangements is that the Boards of Appeal (and the Chairman of the Enlarged Board) are subject to the supervisory oversight of the EPO President. That was the issue with the exclusion of a BoA member from the EPO premises. It was also the source of the EBA Chairman's conflict of interest in Decision R 19/12.

Thus, the independence which is sought is from the executive arm of the EPOrg, rather than the legislative arm.

Previously, you warmly welcomed the proposal by the Chartered Institute of Patent Attorneys. You urged the Administrative Council to use it as a template.

CIPA's proposal was that the President should delegate his supervisory functions to a Director of the Board of Appeals, who would report directly to the Administrative Council, by-passing the EPO President. He would therefore be supervised by the legislative arm rather that the executive arm of the EPOrg.

The Administrative Council have done what you urged. They have used the CIPA proposal as a template. But they have made a few changes to it:

- Instead of "Director", they've called him the President of the Boards of Appeal. (As CIPA proposed, he will also be the the Chairman of the Enlarged Board.)

- Instead of reporting directly to the AC, the BOA President will report via the new Board of Appeal Committee. This will comprise three members of the Administrative Council, and four external members who will be senior judges or presidents of national courts.

So far, this actually improves on the CIPA proposal. True, the AC remains ultimately responsible for the Boards of Appeal (as it must if the EPC is not amended). However, independence is enhanced by interposing a supervisory committee which has a majority of external judicially qualified members.

Issues where I think the AC's proposal falls short are:

- CIPA suggested that the BOA President/Director should be proposed by the Enlarged Board. The AC instead plan to choose a candidate themselves, and will merely "consult" the BOAC. "Consulting" the BOAC is not as independent as having them "propose" a candidate.

- You mention the Presidium of the Boards of Appeal. As far as I can see from the AC's proposal, the Presidium will no longer be responsible for the Boards own internal Rules of Procedure. Why?

- CIPA said their proposal was just an interim solution, and that in the longer term there really needs to be a diplomatic conference to amend the EPC itself. However, that would likely take years, and there's no sign that the AC intends to do anything about it. Both CIPA's and the AC's proposals are really just a fudge within the constraints set by the unamended EPC.

Dilbert said...

During the early second half of the last century, visionaries were at work building a new world based on the ideas of justice, cooperation and basic rights for all.
Alas, since then the wreckers have taken over. Apparently unstoppable, they take great pride in their "achievements".
Why should the EPO be exempt?

Anonymous said...

Garfield:

You objected that "both CIPA's and the AC's proposals are really just a fudge within the constraints set by the unamended EPC."

I think this realisation gives you the answer of why Merpel is against the proposed "reform" of the BoA.

A diplomatic conference is way overdue, and it is unhealthy to fudge things with the intent of postponing what ought to be inevitable. As for the interim: there is no need for hasty fudges. The BoA have functioned pretty well for some 40 years. Only since Battistelli came to power has their status really become an issue. My take is that the problem is not the legal status of the BoA, but the manner in which the President's power has been used. If I understand Merpel properly, she advocates a PROPER reform (not a fudge, as you say), and in the meantime a limitation of the powers of the President of the EPO. I agree with her.

Sincerely,

Kat O'Nine-Tails

Meldrew said...

Garfield,

Agreed, the proposal of a BOAC is an improvement over the CIPA proposal.

Agreed, leaving the rules of procedure with the Praesidium makes sense - the BOAC is supposed to have a supervisory role, which means setting standards, not an active legislators role. Setting standards should include setting the code of conduct, but for the operation of the BoA the Prresidium (Prr is a happy misspelling given the context) is closer to the reality of proceedings.

Agreed, having the BOAC propose the BOA President makes sense.

In short, the proposal (absent the lunacy of moving the BoA from the Isar building) makes a reasonable stop gap permitting thought to be applied to a permanent solution.

On the staff situation we have two bad cases making an unholy mess. Perhaps Tony Blair can mediate?

Dr Evil said...

Dear Kat,

you should know by now, since they enjoy this lovely coverage that the council delegations have no time to deal with so many points as entailed in your list : they also have to deal with their dental care when they are in Munich!

Be nice next time one point at a time

Merpel said...

Dear Garfield

The issue relating to BOAC was perhaps expressed in a too abbreviated manner, so apologies for the confusion. The problem that Merpel was trying to highlight is not the constitution of the BAOC, but its proposed function. It takes functions that are currently performed by the Boards themselves (either the Presidium or the Enlarged Board), such as setting the business distribution scheme and proposing amendments to the Rules of Procedure, and vests them in the BOAC. This gives the BOAC a function of more active managerial character, rather than simply supervisory. Since there appears to be no reason why these functions could not carry on being performed autonomously by the Boards themselves, why the change?

The BOAC proposal may improve judicial independence from the executive (addressing some of the current problems), but to replace this by tying the Boards more than is necessary to another organ of the Organisation (in this case the Administrative Council) creates a new problem of lack of judicial independence.

Kind regards

Merpel

Fafnir said...

"Dr Evil said...
Dear Kat,

you should know by now, since they enjoy this lovely coverage that the council delegations have no time to deal with so many points as entailed in your list : they also have to deal with their dental care when they are in Munich!"


... and, so rumour has it, they have to attend expensive dinners at the poshest restaurants in Munich - or wherever the AC meets at the time - hosted and paid for by none other than the president (or is there perhaps someone else who picks up the tab?)

Auguste Escoffier said...

they have to attend expensive dinners at the poshest restaurants in Munich [...] hosted and paid for by none other than the president

Whoa. They will never bite the hand that feeds them ...

Anonymous said...

"Dr Evil said...
Dear Kat,

you should know by now, since they enjoy this lovely coverage that the council delegations have no time to deal with so many points as entailed in your list : they also have to deal with their dental care when they are in Munich!"

If only they had their teeth sharpened.

Battistorytelli

Rene Artois said...

Thanks to Merpel for publishing this succinct summary of the issues - let us hope that at least some of the AC pause to reflect rather than simply rubber-stamping the President's dangerous proposals.

Anecdotally - and my apologies if this thread is not the appropriate place to raise this issue - I wonder whether other IPKat readers/authors accustomed to dealing with the EPO have noticed a significant change in the quality of work coming from the Office in recent months (real quality, I mean, not BB's beloved ISO-rated "quality")?

As attorneys in private practice, my colleagues and I have in recent months received a disturbingly high number of examination reports / R.71(3) communications from the EPO which have one or more of the flaws listed below, and I wonder whether this is a symptom of the pressure being brought to bear on the staff leading to an increased number of mistakes, for instance due to time constraints and other concerns. It would be interesting to know if my experience can be corroborated by other IPKat readers in private practice or industry (or indeed from within the EPO).

Typical mistakes which I've seen in increasing quantities lately are:

- incompleteness (communications finishing in the middle of a sentence - presumably due to missing pages);

- examination based on out-of-date versions of the claims;

- examination based on claims which belong to different applications entirely;

- inclusion of copied-and-pasted passages lifted verbatim from earlier examination reports which are inappropriate in light of amendments previously made;

- poorly-reasoned or not at all reasoned objections (of course this happens from time to time anyway, but lately there have been so many that I wonder if a drive for speed and turnover is forcing Examiners to cut corners);

- R.71(3) communications which omit amendments agreed by the applicant and examining division, or include disapproved amendments, even after several rounds of disapproval of the text and requests for correction.

Has anyone else had these, or am I just particularly unlucky at present?

TreatyNotifier said...

I agree that the Court of The Hague's judge judgement should be followed, but the argumentation to do so is stronger in the verdict itself than it is in this open letter (which basically argues that some national laws (4, not 38) should be followed as EPO is based there).

The Dutch judge said explicitly:
-Dutch law need NOT to be followed to the letter, but fundemental principles of international law in this regard needed to be followed
-Fundamental rights need to be followed (and upheld by the national judiciary) as an obligation stemming from ECHR case law regarding organizations with immunity
In other words: EPO is bound by ECHR case law in the interpretation of human rights issues (says ECHR), and I believe most (all?) 38 are European Convention of Human Rights parties, so it is "just" one law to be interpreted in final instance by a single organization.

I'll produce more said...

I'm sorry, Rene Artois,

what you report simply cannot be possible: the European Patent Office is ISO9001 certified- this alone means quality!

Anyway, I really don't have time to answer your questions now - my targets have been raised by 30% this year, to prove that the introduced reforms work and all to the glory of the President.



A second Daniel said...

TreatyNotifier said...

EPO is bound by ECHR case law in the interpretation of human rights issues (says ECHR), and I believe most (all?) 38 are European Convention of Human Rights parties, so it is "just" one law to be interpreted in final instance by a single organization


O learned judge! Mark, VP5: a learned judge!

Rene Artois said...

Dear "I'll Produce More" -

Assuming that you're an EPO examiner, you have my sympathies! If - as I suspect - the decline in actual quality is due to the focus on ISO 9001 "quality", which simply seems to be a numbers game, is there anything we from the outside can do to help?

To me it seems you're in a no-win position: either you take the time to produce good examination reports which are well-reasoned, and thus your "productivity" falls; or you aim at high productivity, leading to half-baked examination reports which result in angry applicants/attorneys berating the EPO and giving BB more "evidence" that "quality" needs to be raised, thus making your conditions even worse.

I really fear for the future of the Office.

Dilbert said...

Seeing the complaint about the increasingly poor quality by Rene Artois above, I looked up what examiner training involves. The EPO Website at http://www.epo.org/about-us/jobs/examiners/training.html
says this (with merely some reformatting by me):

"Patent examiner training

Examining patents is a very responsible job. The European patent is an internationally recognised benchmark for quality, and making the right decisions on patent grants requires a high level of expertise.

The EPO provides a two-year training programme for newly recruited examiners, combining classroom learning with tutoring by individually assigned coaches.

Training usually takes place at the examiners' place of work, namely Munich, The Hague or Berlin.

The programme empowers examiners-in-training by providing:

- Classroom learning in groups of 12 (or fewer).

During the first two years, examiners enrol in an extensive training program to become familiar with the tools and procedures necessary for the job.

- Guided learning with a personally assigned coach.
Mainly during their first year, examiners are assigned personal coaches. These are specially trained and experienced examiners who are experts in the new examiner's field.

The training covers:

- Hands-on learning about everyday tools and procedures.

Courses cover computer tools, databases, search methods and procedures used in everyday examining work.

- Legal and practical expertise.
Examiners learn to apply the patentability criteria: novelty, inventive step and industrial applicability. They also attend courses on European and international patent law and practice.

- Language skills.
New recruits will preferably be proficient in all three EPO languages, but some may need to work on one or two. The EPO offers the necessary language training.

- Work on real-life patents.
Under the close supervision of their coaches, newly recruited examiners work on actual patent applications from day one."


Sounds good, but note that this page was last updated on 3.3.2011

Can anyone confirm whether this extensive training schedule is still strictly adhered to? Or has the training programme now been streamlined in the interest of efficiency (keeping an experienced examiner occupied training a newcome wastes time, does it not?)

Even if this post does a tfirst sight not quite chime with the header of an "Open letter to the AC", it is surely central to the discussions that it is real quality of examination (rather than simple quantity) which is what the EPO was designed to deliver. For this it needs well qualified and well mitivated examiners. Battistelli's uncritical infatuation with quantity is about to change all this (or is doing so already)

Cynicus Maximus said...

"I really fear for the future of the Office."

Oh don't worry about that.

It doesn't have one.

Tuppence Worth said...

One of the problems with the BOAC appears to be that there is no basis for such an entity in the EPC.

The only "Board" provided for in the EPC is the "Board" of Article 28 ("Board 28").

The Rules of Procedure of the AC provide for other sub-committees of the AC having a purely advisory role.

The proposed BOAC appears to be - in effective terms - an organ of governance not merely an "advisory committee".

So it is open to question whether it would have an adequate legal basis in the EPC.

L'angelo Misterioso said...

@Rene Artois:

I'm surprised you have been getting any examination reports at all in the light of the recently-introduced 'Early Certainty from Search' (ECfS) policy introduced in DG1.

Under this policy, almost all new searches filed have become priority 1 in our internal administration, which means that if you work in an area with a high incoming search load, all the highest-priority files in your file list are now suddenly search files. The amount of micro-management here is now such that we are expected to mechanically do whatever happens to be at the top of the pile (as defined by ECfS), without regard to how young or old the file is. This micro-management is implemented by calculating for every examiner a figure from the average ranking of the files processed during a month - the lower the figure, the closer the examiner has been following the ECfS rule, no matter whether it might not be the best, fairest or most efficient way of working. Believe it or not, VP1 himself actually seems to be very keen on this.

As a result, many examiners are now in the position that they are strongly discouraged from doing obvious and efficient things like, for instance, quickly granting an application after an applicant has reacted positively to a proposal or suggested amendments.

As far as intermediate communications (2nd rank), non-direct-grant first actions (rank 3) or old EP-A2 and Euro-PCT bis searches (rank 4), I wouldn't hold your breath. They might take some time to float to the top of the tank - if they ever do.

As for ISO 9001 - window-dressing. Or do I mean bandwagon-jumping?

In fact, as any fule kno, ISO 9001 is not about quality of products, it is about whether the internal systems used by an organisation are heuristic: in simple terms, whether they are designed to detect problems and errors and act in such a way as to improve the system. In my humble opinion, the internal structures introduced in the name of ISO 9001 are largely additional bureaucracy designed to give the impression of quality: the underlying system was always sound, if applied correctly.

Rule of Law said...

The Wikipedia entry for ISO 9000 has a good section on the limitations of the certification. Particularly relevant is this:

"Pickrell argues that ISO systems merely gauge whether the processes are being followed. It does not gauge how good the processes are or whether the correct parameters are being measured and controlled to ensure quality. Furthermore, when unique technical solutions are involved in the creation of a new part, ISO does not validate the robustness of the technical solution which is a key part of advanced quality planning. It is not unheard of for an ISO-certified plant to display poor quality performance due to poor process selection and/or poor technical solutions."

http://en.wikipedia.org/wiki/ISO_9000

No monsters under the bed said...

I sense the same "bogeyman" being trotted out as an element of FUD once more...

Yes Virgnia, you as an examiner are being asked to improve your work.

Yes Virgnia, this does mean that you will have to BOTH improve the quantity of your work AND the timing of your work - leastwise in one of those elements OR the other OR (gasp) in both.

But remember Virgnia, the actual use of the Project Management triangle does allow this reality: your pay (the cost leg) will increase with the increases in what is being asked of you.

What should be the takeaway here is that the falsely simple answer of merely throwing crap together to meet the tougher time schedule is NOT a viable path for you as an examiner, and taking such a path will not be tolerated (much different than the implied notion that such tactics will become commonplace).

Let's please stop the FUD involved with posts that sound in apocalyptic "no more quality" examination. Such a state will not be reached, because those advancing under such a rubric will simply not be examiners for long.

In truth then, what may instead happen with any short term tactic is a slight bump in poor examination followed by a correction for that poor quality. What will likely happen with this correction is an explosion in backlog and wait time, as the letting go of examiners who do not meet the higher expectation of quality will mean that the work will pile up higher for those that can meet the higher expectation of quality.

As anyone out in the real world can attest to, the use of quality tools should not focus on the tool for the sake of the tool, but rather for the end effects. Let's stop the short term dust kicking here please.

Old man of EPO said...

No monsters...
Whet does this triangle keep coming from??
Since the average examiner will lose money under the new scheme, irrespective of performance, then better quality and better quantity is combined with less pay.
And better quantity and better quality can only ever be obtained by better methods. If no such methods or tools are provided, how does it happen? Simply, allegedly, trying to give more money (although not actually doing so), doesn't create better performance. If not, then performance would be infinitely elastic.

Well said said...

"Let's please stop the FUD involved with posts that sound in apocalyptic "no more quality" examination. Such a state will not be reached, because those advancing under such a rubric will simply not be examiners for long. "

Damn right. They will soon be promoted to "managers".

Proof of the pudding said...

Rene Artois,

As another attorney in private practice, I can also attest to having observed instances of the following in connection with examination communications from the EPO.

- incompleteness;

- examination based on out-of-date versions of the claims;

- inclusion of copied-and-pasted passages lifted verbatim from earlier examination reports which are inappropriate in light of amendments previously made;

- poorly-reasoned or not at all reasoned objections.

However, I have seen these most from a single examiner who, despite "retraining", appears to have maintained many bad habits. Nevertheless, as that examiner is a prolific producer of (bad) examination reports, I suspect that the EPO management may view them in a much more positive light than do the applicants.

As it is patent filers who are the source of the EPO's funds, there really ought to be a way for them to complain about such shoddy work products and to demand a better service. However, it seems that one of the reasons why there has so far been no comeback for BB's approach to management is that there really is no effective way for an applicant to voice such complaints - and to insist (in the worst cases) upon being assigned another examiner.

Perhaps this is an area where lobbying from applicants can ultimately have a positive impact upon the EPO? After all, applicants are much more likely to be concerned about ACTUAL quality than they are about an illusion of "quality" provided by an ISO certification.

Tuppence Ha'penny said...

Dear Tuppence Worth,

You worry about the legal basis for the BOAC, since the Rules of Procedure of the AC only provide for sub-committees to have an advisory role.

However, the AC's Rules of Procedure can be changed. In fact, the proposals would also require much more significant changes to the Implementing Regulations of the EPC.

Millipede said...

Coming back to the Original Katpost (the discussion on quality, however interesting and necessary, should be held in another place) I would urge the AC to adopt at least the last suggestion of the IPKat to Comply with the judgement of the Court of Appeal of The Hague to provide basic levels of labour rights to the staff organisation.

I would not want to sit in a supervisory body of an organisation that is held not to comply with the Human Rights.

Bibi said...

Dilbert,

In the past (before BB) the beginners started at the academy and when they had some experience on what a patent is they started to work with their tutor. Usually an experienced Examiner (one of those who have seen their carrier plan recently destroyed). Also they had an objective taking into account a learning curve.

Then some Directors under the blessing of VP1 have started to ask disproportionate objectives to apprentice Examiners.

And now VP1 has instructed to send the newcomer (before any Academy) a few days in the Directorate to be informed in priority of his target.
To do what?
Nobody knows.

MaxDrei said...

On the issue of "Quality" and meeting management "Targets" I have this to say on Notices of Allowance (Rule 71(3) communications.

I see in them an ever-increasing number of needless hand-written changes, introduced by the Division.

Why is this, I wonder. Is it:

1. Examiners fancying themselves as patent attorneys

2. Examiners demonstrating to Management Quality Controllers that they are hot on "Quality"

3. Examining Divisions deliberately provoking disapprovals from Applicants, to clog up the system in a way that doesn't spoil their personal Disposal Points count?

4. more than one of the above?

Whatever? I see this as yet another example of management theory f...ing up a system that was working, till management got at it.

Rene Artois said...

Apologies for somewhat derailing the discussion, but to me the increasingly shoddy output from the EPO seems to be a tangible manifestation of the intolerable pressure Examiners are being placed under by BB's maladministration.

Returning to the original points of the open letter: I sincerely hope the AC will reprimand the management for the arrant nonsense which was contained in the Office's response to the Dutch judgment and the official notice which was published on the website regarding the Office's respect for human rights. Neither the employees nor the users of the EPO are idiots, so I would love for the management to be told in no uncertain terms to stop putting out such arrogant, irrelevant drivel and to show some respect for the intelligence and integrity of their critics.

Sadly, judging by the sycophantic tone of the minutes which we have seen from previous AC meetings (praising BB for his courage, etc) I fear this may be a forlorn hope.

Droits de l'homme said...

I would not want to sit in a supervisory body of an organisation that is held not to comply with the Human Rights.

But the EPO does comply with human rights standards!

Don't you read the news?
https://www.epo.org/news-issues/news/2015/20150318.html

You shouldn't allow yourself to be distracted by strange rumours circulating "in some media, political circles and even with national judges":

Let's stick to the facts, please.

Cat out of the bag said...

"Nevertheless, as that examiner is a prolific producer of (bad) examination reports, I suspect that the EPO management may view them in a much more positive light than do the applicants."

Shhh ... don't give the game away!

L'angelo Misterioso said...

@No monsters under the bed:

"But remember Virgnia [sic], the actual use of the Project Management triangle does allow this reality: your pay (the cost leg) will increase with the increases in what is being asked of you."

You clearly have no idea of the reality of the EPO, where there is no indication of pay going up with productivity. If about 50% of examiners are lucky, they may get some sort of productivity award, but it's largely a lottery. By the way, who's "Virgnia"? Do you mean, "Virginia"?

"What should be the takeaway here [are we talking about fast-food outlets?] is that the falsely simple answer of merely throwing crap together to meet the tougher time schedule is NOT a viable path for you as an examiner, and taking such a path will not be tolerated (much different than the implied notion that such tactics will become commonplace)."

Now here, unwittingly perhaps, you have said a mouthful: quality as well as quantity aspects will certainly be used as a way to target and sack examiners. But most examiners are conscientious people who don't throw crap together, anyway.

"Let's please stop the FUD [Fear, Uncertainty and Doubt, for those not au fait] involved with posts that sound in apocalyptic "no more quality" examination. Such a state will not be reached, because those advancing under such a rubric will simply not be examiners for long."

Absolutely. Management is looking forward to starting to sack presently employed examiners for poor performance and replacing them with new recruits: because in our new scheme all new recruits start at the bottom of the scale, experience being ignored, and are much cheaper. Yum!

"In truth then, what may instead happen with any short term tactic is a slight bump in poor examination followed by a correction for that poor quality. What will likely happen with this correction is an explosion in backlog and wait time, as the letting go of examiners who do not meet the higher expectation of quality will mean that the work will pile up higher for those that can meet the higher expectation of quality."

That doesn't sound very optimistic for a well-functioning system...

"As anyone out in the real world [real world? does anyone who reads this stuff live in the real world?] can attest to, the use of quality tools should not focus on the tool for the sake of the tool, but rather for the end effects."

Now you've lost me. Can anyone explain what that is supposed to mean? Sounds like management-speak.

Pointless said...

MaxDrei,

the Examiner is under pressure, he/she needs to send out that grant and get the point for it.

Shall he/she send a further communication or call you to ask for more amendments? But then the legal time limit that can be set is no less than two months, and he/she really needs that point ...

So, to speed things up, the efficient Examiner introduces the amendments, send the grant and get his/her point! Yippee!

You may not agree with the amendments, but in the meantime the point is there ...

What a joke said...

COMPLY with the judgment of the Court of Appeal of the Hague of 17 February 2015 to provide basic levels of labour rights to staff across the Organisation.

That's a laugh.

Poor wee Merpel doesn't seem to have twigged it yet that discussion on the judgement of the Court of Appeal has not even been placed on the Agenda for the upcoming rubber stamping session ... pardon me, I meant meeting of the Administrative Council.

For more details see here:
http://www.suepo.org/public/su15135cp.pdf

MaxDrei said...

Thanks go to "Pointless" for explaining to me why Examiners pump out Notices of Allowance.

I do understand that they collect a Point for doing so. But what if the Examiner-injected hand-writing in the description is unacceptable, with the consequence that Applicant disapproves. This will result in issue of another Notice of Allowance. Does this garner another Disposal Point? If it does, that would explain all the sily hand-written insertions in the description. But I guess it does not.

And if they don't get an extra Point, why are they making unnecessary and silly amendments to the description? Are they inexperienced, or is it that the willingness of their signing superior to sign off on the case increases in direct proportion to the amount of hand-writing in the Druckexemplar?

Or is it that the level of satisfaction of the EPO's bean-counting in-house Quality Police rises in direct proportion to the amount of hand-writing that the Examining Division has injected into the Druckexemplar?

If so, then it makes sense for both the First Member and the Chair of the ED to work together in this way, to placate the all-powerful Quality Division.

I wonder, in the event that Applicant disapproves the handwriting-freighted Druckexemplar, does the Examiner forfeit his previously awarded Disposal Point? If not, why not?

Anonymous said...

Although the Examiners are officially evaluaed with so called staff report once per year, their production is monitored continueously. So at any time, if a Manager considers that the production/grant number is too low a warning letter is issued, which is the first step of the firing proceduer. So if an examiner, for what ever reason, like absence or what ever, ends up having too few grants, he or she must immediatlely come up with some grants to avert the warning letter. So the point now does it, even if some work must be done later.

Barbi

Coincidence? said...

On 18th March (according to What a Joke's link), SUEPO's Dutch lawyers wrote to Ministers in all contracting states, arguing that the contracting states could be held liable for EPO violations of fundamental rights found by The Hague Court of Appeal.

On 18th March, the UK Intellectual Property Minister happened to be visiting the EPO.

On 18th March, the EPO management issued a very strange denial of any human rights violations.

Coincidence?

Catwoman said...

Dear MaxDrei,

Examiners are simply held to amend the description. The EPO has an in-house quality control department (often referred to as the "Stasi" by Examiners of my age) that randomly checks grants (and also searches, oppositions, classification, handling of incoming files, support-staff actions, file distribution and more). Even if the grant is "in order" it happens that the Stasi comes back with a file and points to page 206 of the description because in line 14 there is a reference to an embodiment that does not fall under the granted claims. The Examiner in question than has to answer questions.

It is a waste of time, really. It is also a nuisance and after the changes and the turmoil of the recent years people are now scared enough to go through the whole description trying to amend it so as to comply with the Stasi´s standards. Unfortunately, the requests for "adaption of the description" at the end of an examination procedure is often not complied with so that it would hold the scrutinizing examinations of the Stasi. I believe these are the reasons why many examiners make these amendments.

I believe Applicants would have 2 options to change that:
a) they make more extensive amendments themselves so that the files comply with the EPO´s internal quality department, or
b) they make their anger known and in particular highlight what such amendments can do to a patent after it has been granted.

Best regards,

Catwoman

Catwoman said...

Yes coincidence.

The Minister´s visit to the EPO had been planned for more than a year in advance.

Catwoman

Anonymous said...

Imagine that as a patent attorney you are told by your boss that from now on you must generate so many grants and/or refusals per year. Moreover, the work will be accounted for only at the time when you get either grant or refusal. Howe many communications you answer and how many documents you have to discuss is only your business. What counts is only the grant or refusal. During that year, if your boss notices that the number of your grants and refusals appears to low to meet the target number you get a warning letter.
This is in principle the system at the EPO for examiners.
So that the fact the examiners do not cite only one A document in the search report and do not issue direct grants based on that, as a rule, is a wander.

Barbi.

DG1Director said...

Dear Barbi,

Please enlighten us with your obviously inside knowledge. How many examiners have been fired for low production in the last, say, 15 years?

Interested party said...

It would appear this blog has split into two sub-blogs, one on quality and one on what the administrative council should be doing. If I may be so bold, perhaps a dedicated blogspot for the new "quality" question may not be inappropriate. Since we started off with the AC, however, here a short comment to that.
I'm extremely sorry to say your entirely justified and correct hopes do not stand a snowball's chance in the nethermost recesses of hell of coming to fruition. The only way it could possibly happen would be if they AC stood up and admitted failing in their duty and they're really likely to do that aren't they? The meeting between the King and the Baroness is typical in this regard, since the UKIPO has actually already installed as much as they could get away with of what the EPO is doing. Here too, are they going to say "we got it wrong"?
I think the apparent pattern brings us regretfully back to the other sub-blog. I cannot help but get the incredible impression that the AC thinks that the work the national offices do and the EPO does is the same. OK, I admit, if they carry on as they are doing it soon will be, but it didn't use to be. Just look at it logically, why was the EPO praised for quality and the others not? - there must have been a difference. My experience suggests to me at least that this used to be the case. When I compare files granted by US or national patent offices with the family members from the EPO I usually see a world of difference. While some may enjoy whinging about how long the EPO procedure took, it did used to be aimed at a "high probability of validity" and the fact that users were prepared to invest in that can only mean that they saw some advantage in it. If you want to buy a posh car it will drive just like the others, but will cost you a lot more money and will probably have a waiting list because so many other people want a posh car too. What King-BB and his AC are doing is converting Porsches to Trabis. If you want to talk quality, don't go on about ISO9001 (which will confirm that the Trabi-factory works correctly), look to see what the difference is (or better still was) between the two products. Once you do that, the word "quality" becomes meaningful.

Interested party said...

Dear DG1Director
Please enlighten us with your obviously inside knowledge. How many examiners were not fired by their directors in the last 15 years and how many are now being set up?

Anonymous said...

I am an examiner .
I do what the ac does.
They stamp the idiotic battiman decisions

I stamp the idiotic brands and searches as fast as I can stamp them .

If they ask for more I get a monkey in my office and help the stamping no problem


The examiner that doesn't give a sh*t..... More are assuming my examiner title lately

EpoVP said...

I am a VP in the Epo.
I don't really know why I read ipkat bit I like it like it yes I do ��
Enjoying the last years of the Epo .
Do the same

Anonymous said...

Dear DG1 Director,

Barbi suggests that you ask how many examiners have been fired due to low production your HR department. The HR department has the reccord, becuase, the warning letters are kept on personal files of the examiners. The HR department can even tell you how many of the examiners have such letters on thier personal files at present. HR departmet can provdie you with very reliable numers in that respect and I can asure you that this number is different than zero. But, please, do not just trust me, aske them! (And onse you do, please, tell us).

Barbi

MaxDrei said...

Catwoman at 17:59 is exactly on the money. Quality control needs easy meat, so focusses on line 14 on page 206 where (they judge) the Examiner should have inserted in hand-writing words to indicate whether or not the n'th illustrated embodiment is or is not in accordance with the invention of claim 1.

EPO Examining Divisions in engineering now laboriously go through all 210 pages of the description amending in hand-writing the word "embodiment" to read "example". I suppose in chemistry they go through, changing "example" to read "embodiment". Why are they doing this? Who makes them do it? In the new ISO-certified EPO, is this somebody's idea of "quality"?

I shall take up Catwoman's suggestion and suggest to my client that it might want to disapprove the 71(3) text proposed for grant.

Friend of the examiner that doesnt give a sh*t said...

I agree and I do the same. They give me less money I give them less quality. They give me a headache and disrespect me ? I do the same go find out if I searched a lot or Not at all and make idiots check me quality by losing even more time....so what bh the time they figure it out I will be on pension....

Aspiring Manager said...

Dear Merpel,

I and the large majority in the IP worl is utterly shocked that you fall for the defaming propaganda of a small, radical minority at the EPO. These people are well known underperformers trying to secure their income with a minimum of effort.

The President already stated several times that the program "social democracy" follows the best practice in industry and International organisations; this alone should be sufficient to convince any sceptic of the true and good nature of the reforms.

Merely to address a few points:
The staff of the EPO is very happy and supports the long needed reforms: there is very little staff turn over and in fact the productivity increased - despite several days of strike. This clearly shows the staff's support to the course of the president.

The reforms were scrutinised by the Administrative Council, representing the democracies throughout Europe. Anti-democratic tendencies would never be allowed by the AC.

The new career system will foster the competition among staff, leading to a better value to price ratio; the quality of the office is now enshrined by an excellent quality ensurance system which follows the high standards of ISO 9001.

Our new social package (health reform) will allow the staff to concentrate on work and allows for a quick reintegration in casse3 of sickness; this reduces additional financial burdens to the office, which will be to the profit of the whole IP community.

The new structure of the Boards of Appeal meets the long felt wants of a reform and is clearly to support the independence of the Boards - any interpretation to the contrary is absurd.

The strike reform is by far more liberal than in many member states to the EPO. For example, Germany, the seat of the organisation, does not allow public officers to strike at all. Further, the protective hand of the president over strikes will protect the staff from itself as going on strike certainly shows a negative attitude to the office; this in turn will not be in favour of career advancements.

On the side of the staff representation, the office clearly can do nothing; this group of people is even not able to elect a chairperson.

Best regards,
your aspiring manager.

========================
and now the question: where does reality stop and satire begin ...

Mork said...

I can't help feeling that this discussion is drifting slightly off topic.

The issues that Merpel highlights are very important and I'm shocked to the core by what is going on at the EPO. Isn't it trivialising the debate to discuss examiners' productivity when the questions at stake go right to the principles of our society? What about respect of human rights, respect of the law and the smooth functioning of a patent system for Europe?

Surely we should be more concerned about why representatives of democratic states can support such behaviour with their votes in the Administrative Council?

Me said...

Dear attorneys,

The EPO performs a User Satisfaction Survey every two years. The results of the last one can be found at

http://documents.epo.org/projects/babylon/eponet.nsf/0/28D33087C3C5D385C1257DA200442C67/$File/user_satisfaction_survey_search_and_examination_en.pdf

These results seem to indicate that your profession is very, and even increasingly, satisfied with the work of the EPO in search and examination........

I am curious, have you ever been interviewed for this survey?

Dilbert said...

While I fully understand the frustration and irritation of examiners concerning the actions of senior management, every examiner should still do what is REASONABLE IN THE CIRCUMSTANCES. Just saying "I don't give a sh.t" in my humble view presents an unfavourable image of examiners as being unprofessional and irresponsible. After all, examiners are still paid some sort of salary, even under the current regime. Compare "I don't give a sh.t" with "I'll try to do a good job, but with the unreasonable time constraints imposed by management it is impossible to achieve the quality applicants were used to in the past".

Dilbert said...

@ aspiring manager: you unfortunately sound as if you are supporting the democratic (or should this be social-democratic) Leader - or are you?

the examiners taht dont give a sh?t anymore said...

When The Management treats examiners like idiots then they also should do their work as idiots.

Anonymous said...

dear EpoVP, if it's true that you are a VP you better get off your ass, open your mouth in the MAC and talk to your delegation in the AC; this would probably make far more sense than writing a tiny little comment in the blog !

kind regards,

the slave who has not given up hope yet

A Staff Survey said...

Dear Rene Artois, Maxdrei, No Monsters, Interested Party and Co.

Top managers set the core values of an organization as they want it to be.

Merpel's open letter suggests a cultural change within the EPO: no respect for the Rule of Law, speedy and poorly drafted decisions, with limited dialogue (if any) and complete disregard for the legitimate interests or arguments of any party.

Could it be that examiners (and other staff), out of frustration, fear and/or demotivation, are progressively adopting that culture? The focus of the EPO is now clearly on more output, which becomes de facto (and by far) the main/core value (as a matter of principle, irrespective of the amount of sticks and carrots at stake), and that's what the applicants are delivered and patent attorneys see.

All this is of course only speculation. There used to be a staff survey with questions about pride, motivation and so on. This has now been replaced by statements of senior management (or even of the AC) on behalf of staff.

A first step to find out about the real situation on staff matters, and how they might affect their work (e.g. quality, cooperative attitude) and affect the EPO as a whole (e.g. independence of the Boards and of divisions), would be to run a comprehensive staff survey, FULLY independent and anonymous (as in the past). Anyone being concerned by the situation at the EPO might consider requesting it.

overzealous examiner said...

@MaxDrei:

EPO Examining Divisions in engineering now laboriously go through all 210 pages of the description amending in hand-writing the word "embodiment" to read "example". (...) Why are they doing this? Who makes them do it?

How about the EPC as interpreted in the Guidelines?

Anonymous said...

Wilko says:
Dear aspring manager - take your head out of your bottom. If you "aspire" to be a manager at least do us all a favour and grasp an understanding of the subject here. EPO "ASPRIRING MANAGERS" need to understand that they are viewed by those of us who have been there longer (and have the qualifications) - that they are known as "desperate wannabees"

Anonymous said...

"every examiner should still do what is REASONABLE IN THE CIRCUMSTANCES"
The only question is what is reasonable under the circumstances where your human rights are being abused and after it is proven in a court of law you are being toled that nothing will be done about that. Under the circumstances where you are under the constant threat of becoming a subjet of Investigation and you do not even know that you are. Under the circumstances that when you are ill you have to be at home at specified times every day and if you must go to the hospial you must get a prior permission from the EPO, etc.

What is reasonable under the above circumstances???

Barbi

Bibi said...

It seems to me that the "don't give a s... examiner" (still) represents an absolute minority.

On the other end it is also true that in reaction to the management oppression and incompetence, cleaning tasks that would have been done in the past by the Examiner himself are left to the representative.

How can a management expects the staffs very best submitting him to a permanent terror/oppression/humiliation?

I wonder if these people really believe the discourse they are professing?

They have reached the zero level of incompetence/cowardice or they really want the end of the EPO or they don't have the slightest idea where they are going and they don't give a s... ?

examiner who does give a... said...

Please all readers out there, do not think that all examiners do not give a... Some at least still do, but it's very difficult just at the moment. I am one of the A4(2)'s particularly heavily penalised, with my salary now frozen for the rest of my career, my target for this year lies 60% above my production from last year, so despite never having had anything less than "very good" in my staff reports, a disciplinary letter for incompetence is a real possibility. With kids still studying it basically requires throttling down any free-time activities, but what it certainly does not require is to grant a file that does not warrant granting, nor to stop helping applicants to the protection they deserve by looking closer into the description to fully understand the invention. I see PCT files with positive reports on claims which are clearly not new and I ask myself what could motivate an examiner to do this - now I know and I'm sorry for misjudging my colleagues abroad if they've had to put up with similar pressure. None the less I would encourage them to do their best and become examiners and not just "target meeters".
If examination has meaning, opposition isn't such a problem because you can't find a better document than we did and litigation negotiations start with a presumption of validity which saves legal costs in the long run. We are a long way from getting to such a situation, but the EPO is no longer heading towards it, rather going the opposite way. Do you, the users, really prefer crap patents and then long drawn-out litigation, perhaps in a court they haven't invented yet? If not, the go out and support your local examiner and give ministers enough of a headache so that they actually understand what's happening.

oldexaminer said...

The last acting examiners ware dissatisfied and disappearing fast.
I been 24 years in the Epo and lately its clear we must become a stamping office
The overjealous examiners don't get it they think they know better ..
The world needs a new post office not an old patent office . Epo examiners think they know better than the ac the president and continue their old ways ....they are obsolete. And the state.around them is built so that they will have either to change or to go away
Epo examiners wake up at last

reCAPTCHA said...

As A4 examiner seldom having had more than "good", I fully support all points in the statement of Examiner who does give a ...
Dear patent attorneys, dear applicants, PLEASE, put pressure where on the CA and on the EPO management if you want to maintain the average professionalism you were use to get.
As for me, I soon will be far away and not giving a s... of what happens at the EPO, but still.

MaxDrei said...

Over-zealous at 00:30 today, you make my point. Thanks.

I have no problem with the Guidelines requirement that, for compliance with Art 84 EPC, what the specification describes as the invention must be in strict conformity with what the claims define as the invention.

In chemistry, the description includes Examples and Comparative Examples, the former within the claim, the latter not. Everybody knows this. Editing for the 71(3) will therefore often require re-classifying what was originally an "Example" into a "Compartative Example". Fair enough. Indeed, necessary.

Yet now, in engineering, Examiners edit descriptions of what are said to be "embodiments" of an illustrated catheter or pump or widget that lacks some feature or other in the claim to read "example" of a widget (or whatever). They seem to think that an "embodiment" dictates something within the claim while "example" dictates something outside the claim. How can they come to that idea? What is in the drawing might or might not be an embodiment of the invention but one thing's for sure. Whether or not it is an embodiment of the invention, unless the drawing depicts something other than a thing we call a "widget", it remains a drawing of one specific "embodiment" of that thing we call a "widget".

Where precisely in The Guidelines is the support for what you are doing to my carefully written patent application text? Which paragraph please?

overzealous examiner said...

@MaxDrei:
See GL F-IV, 4.3(iii).
Indeed an "embodiment" is something for which protection is sought, so should fall under one of the granted independent claims.

examiner said...

Overzealous examiner you are out of topic , space and time. Go back to kindergarten where all is rules and numbers. In today's world no one give a damn about your embodiment only about your production
Wake up al last before you are displayed in a glass jar with people pointing at you.
Ahh I so understand the battiman ....he has to deal with the likes of you..

Downtrodden staffer said...

Dear All,

To return to the original subject, its interesting to note that the President has gone public with his interpretation of the current situation.

He has published the MAC paper on the EPO's public website:

http://www.epo.org/news-issues/news/2015/20150318.html

Should he be proven to be wrong, should not the public demand a retraction and apology?

Regards,
Downtrodden Staffer

Old man of EPO said...

Oldexaminer,
Out of touch? Fine, just let the president publicly say so. But neither he nor any of the rest of management will say so. Instead the doctrine is better quality and no postbox service. If the reality is grant everything, then declare it but don't pretend that quality as was still matters. And don't force examiners to be blamed for any reduction in service.
The truth is that you are talking rubbish. The required standards for examination are not being abandoned and the is no new system. Other than more production, more quality, less reward.

should i stay or should i go... said...

I find myself currently in the funny position, that I have been proposed an examiner job by EPO... and will reject it.

I am quite sure that I am not the only qualified engineer who was thinking about giving up a good job to work at EPO.
But following the evolution over the last couple of months, I don't see any reason any more why I should do so. The starting salary is still good, but without any security about how it will evolve and how I will be treated in case of sickness or invalidity, I would be an idiot to give up the perspective of a good career in industry or science.

I wonder if the AC and EPO are aware of the fact that they will really run into a serious recruitment problem! Every serious applicant is following what is currently happening... And this is not how you attract skilled and qualified people. Even though application numbers might still be high, it will not for long attract the people that EPO originally wanted to do the job.

And then?

Really sad...

ex-examiner (UKIPO) said...

To adapt the old saying, it appears that there are lies, damned lies, and Battistel-lies.

MaxDrei said...

Over-zealous Examiner you certainly live up to your pseudonym. Look at the para in the Guidelines you just cited. What does it say? "Embodiments of the Invention" right? What did I write in my contributions above? That "embodiments of a widget" is not the same meaning as "embodiments of the Invention".

That said, I grant you that the cited para in The Guidelines is badly written, in that it foolishly suggests that any issue with the word "embodiment" is cured with wave of your Magic Wand, by using it to delete "embodiment" and replace it with "example". It seems that is what you also believe. Really?

Readers, as we see, in the EPO of today, it has become a case of "The blind leading the blind". How sad.

overzealous examiner said...

@MaxDrei:
Thank you for becoming insulting so quickly, smells like victory.

I am happy to inform you that examiners are also supposed to object to your dependent claim 115 for lack of clarity. The horror, right?

Cheers.

Fafnir said...

The coming AC meeting will be crucial - either Benoit Battistelli and his cronies hit the buffer stops, or the EPO hits the buffer stops. Simples!

P.S. I suppose there is still a chance that the crucial AC meeting will in fact be the following one around the time of the 200 year anniversary of the Battle of Waterloo.

Old man of EPO said...

Maxdrei,
Having had attorneys making exceedingly far-fetched attempts to interpret any amount of vague statements, i appreciate why colleagues prefer to have clarity. You could avoid any problem by not using embodiments when you don't mean an embodiment of the invention in the first place. Problem solved? Unless you are trying to be unclear on order to cause confusion or to cater for non-European jurisdictions.

MaxDrei said...

Thanks, Over and Old Man, for your comments. I do agree, that cases drafted in the USA or for the USA are often deliberately written to be unclear. Of course, it belongs to prosecution at the EPO to meet the requirements of Art 84 EPC. But simply striking out "embodiment" and writing "example" instead does nothing to meet that objective. If you read the para in The Guidelines as telling you to do that, you are mis-reading The Guidelines.

Me, without being told, I routinely do amend the description, in every way needed to meet Art 84 EPC. Why? Because I do not like getting a Druckexemplar with Examiner hand-writing all over it. Why? Because that hand-writing might put in the heads of clients the suspicion that their chosen EPO representative does not know how to meet the provisions of the EPC, that the Examiners have to do it for him. That, in turn could cause the client to switch to another firm of European patent attorneys. Can you relate to my worry, I wonder.

No monsters under the bed said...

This is a response to a post way up yesterday at 14:56.

You are out of tune, mother (said in the best George Harrison tones).

Focusing as you do on a typo (this is the internet, not a scholarly tome), and coupled with a FALSE pronouncement of “reality” – it is easy to see that you do not “like” the project management triangle.

However, that triangle does in fact hold for the fact patterns here.

There is no “lottery” with the higher pay, and the intimations of such run parallel to the false intimations of a “death” of quality.

The attempt at humor (fast food…?) falls flat with your attempt to not give credit where credit is due (nothing “unwittingly” about my point, and no reason at all for you to so characterize my point.

You appear instead to be overly concerned with the mere aspect of “sacking examiners,” forgetting of course that ALL examiners – of any particular “bent” towards allowing or not allowing patents – will face the same higher standards.

Simply put, this is NOT a call to any such type of mere “rubber stamping” expressly because mere “rubber-stamping” does not meet quality criteria, but merely meets time criteria.

Yes – you may have a valid point with the ability to use lower paid workers. But such is universally true, and is in fact more a sign of efficiency than any such “conspiracy-minded, they-are-out-to-gut-quality” mantra that is part and parcel of the FUD being advanced by those who are afraid of losing their “privileged” positions.

I would also add that “well-functioning” is NOT perfectly aligned with any sense of “keep the seasoned and expensive examiners because of “experience.” I will grant that such experience can be valuable, but it does not follow that being seasoned must be valuable, nor that the value of experience is worth “any” cost.
The fact that you question the term “real world” only too well paints the picture that you are far too accustomed to the world of bureaucracy and privilege. There is nothing magical or “management-speak” in the term. There is, however, a very real threat to a type of employment that is being phased out. I can understand your reaction to the changing environment. Back in the early 1800’s, the Luddites acted in a very similar manner.

It did not work out too well for them.

examiner who does give a... said...

Dear no monsters under the bed
Despite rumours to the contrary examiners do get out of the office now and again and do talk to normal humans and do get to hear that the outside world is generally going wonky. I think I could probably live with the EPO going wonky in a similar manner except that I have been brought up through many years in the office to actually care what happens to applicants. That's why we do a thorough search and examination (because we care about the general public too) and that is why we will search in the application and suggest if we see patentable subject matter.
I personally feel that what is foreseeable will leave the applicants with crap patents and expensive litigation and I think it should not happen. Couple that with upper management (and I include the AC here) increasing their own salaries in these troubled times, while stocking up their own patent offices to cope with the flood of applicants leaving the office like rats from a sinking ship, and a certain amount of frustration does seem justified. If this is the only valve to let off steam, then if we can perhaps at least warm up the AC meetings with that steam, then we have at least tried.

Sir Grantsalot said...

no monsters under the bed said:

Yes – you may have a valid point with the ability to use lower paid workers. But such is universally true, and is in fact more a sign of efficiency than any such “conspiracy-minded, they-are-out-to-gut-quality” mantra


So, wait, did I understand you correctly?

Lower paid workers are a sign of efficiency?

Really?

I think you may be confusing exploitation with efficiency.

Old man of EPO said...

No monster,
I notice you repeat your abstract concepts (and add the ad hominem Luddite insult) but don't deal with the actual point I made about your beloved Project Triangle - what happens when quality and quantity go up and costs (salaries/pensions) go down as is here the case. Care to explain?

Dilbert said...

Anyone who thinks that life is as simple as a triangle should not accuse others of not living in the real world.

No monsters under the bed said...

Old man of EPO,

Please restrain yourself to one pseudonym per thread, as that is the posting rules for this and like-topic threads, and that rule explicitly comes into play here, as your "bouncing around" between replies is not helpful ("you" made a point indicates that the "you" is multiple, eh).

As to "abstract concepts," if you mean the well grounded "abstract concept" of the project management triangle, I assure you that the concept is proven and works. There are plenty of web places you can go to inform yourself of this concept. And yes, I do deal with your point (and dealt with it previously), in that you have inverted the cost leg (due to your preoccupation with your own profession as an examiner, no doubt). If you instead look at the cost leg in the project sense, those who can perform at higher levels obtain high "costs" and the integrity of the triangle is maintained. As I indicated, mere rubber stamping would move the timing leg in a desired vector, but not the quality leg. The system is balanced from a project management perspective.

As to the reference to the Luddites, I suggest that you recognize that this is no mere "ad hominem," but rather it is an on point historical analogy - and a quite fitting one at that. Yes, it does paint you in a negative light - but that is a function of your position on the matters here.

Sir Grantsalot,

Yes, from an overall project perspective, lower paid workers - all things else kept the same - are in fact a sign of efficiency. This point is hardly startling at all, and is an absolute truism for any company operating in a capitalistic environment. I think that perhaps you have jumped to the conclusion that lower paid workers necessarily cannot perform at the same level as higher paid workers. That is not a safe assumption (albeit the true picture is one in which both the inputs and the outputs are evaluated.

And yes, I am aware that this does ring in the tones of "exploitation." But that is as it has always been regardless of the job or worker: Give me a definition of "increased efficiency" in which this does not ring out...

examiner who does give a...,

I hear you. I really do. However, you too are slipping to a type of default "well, the quality has to go to c r a p" mindset, which violates one of the legs of the project management triangle. If indeed you have that dedication to quality, then you are exactly the type who will make the most bank in the new system. One reality of system optimization that is at play here is that "quality" that takes forever is NOT the same as efficient quality. Perhaps if you recognized the engineering term of "gold-plating" - that is, engineering (true, real world engineering) involves trade-offs. No system is built, is even meant to be built, to absolute perfection. Perhaps it is (for you personally) this aspect that offends you and makes you think that quality must suffer under any type of real world efficiency constraint. You may be that good in your own personal work product. But the system discussion here is not just for you, and surely, you recognize that time is indeed a constraint to be "engineered in."

Old man of EPO said...

No monster,
Eh?
Yesterday at 1308 I asked a question. You didn't answer. My comment above was a reference to your comments today. I didn't say they were directed at me.
Sorry if you're confused, but I am Old man of EPO and nobody else.
As for your cost leg - the average performer, with improved quality and quantity, will lose about 1/3 of their max salary. The best performers will earn less than the current best performers (who are off the top of the new scales). I think you need to reappraise your analysis.

Old man of EPO said...

Returning to topic, the AC starts tomorrow. A BoA member will presumably learn more about his/her future (or has that become a private matter as the president's investigation rules dictate?). Has Merpel received any feedback from any delegate? No need to be indiscreet but a sign of any reaction would be good.

No monsters under the bed said...

My sincere apologies Old man of EPO, as I did not see your comment of yesterday previously, and the comment that I mistook for yours was instead from L'angelo Misterioso (I thought myself clear as to the references I have used).

I really did not scroll up near far enough to see your post from yesterday.

Then to answer (in the first instance) your comment of 13:08, I would reply that the education on the project management triangle is every bit (still) on point and available to you in abundance elsewhere on the Internet. I will not attempt to educate you on that on a blog. Suffice to say, that you are not grasping the concept, as the concept fits well (as I have posted).

The best guess I can offer you as to a source of your consternation is that there is a "reset" of the system and you are comparing the new system to the old, and not liking the changes to the rates of pay.

Of course, the counter to that would be a simple "proclamation" that the old system itself was out of wack with reality and resulted in TOO MUCH pay for too little "quality." That I believe is the answer to your gripe about the loss to the average examiner, and such has no impact whatsoever to the efficacy of the project management triangle.

As to Dilbert, all I can offer you is that you are mistaken as to the very notion of what the triangle pertains to, as I never indicated that life itself is as a simple as a triangle.

Sir Grantsalot said...

No monsters under the bed said:

"Yes, from an overall project perspective, lower paid workers - all things else kept the same - are in fact a sign of efficiency. This point is hardly startling at all, and is an absolute truism for any company operating in a capitalistic environment."


Dear No monsters under the bed,

You may want to brush up on your basic modern economic theory, in particular efficiency wage theory.

The idea of the efficiency wage theory is that it may benefit firms to pay workers a wage higher than the equilibrium wage.

The argument is that paying workers a higher wage leads to increased productivity from the worker.

Henry Ford was among the first to discover the full use of the efficiency-wage theories. In 1914, the Ford Motor Company began to pay its workers $5 a day, when the average wage at that time was between $2-3 day. Henry Ford believed that by paying above the equilibrium wage would secure the business for the future. Significant increases in productivity and profits at Ford accompanied the introduction of the $5 day.

http://www.economicshelp.org/blog/glossary/efficiency-wage-theory/

Dilbert said...

@ no monsters under the bed said ...

i was going to write an answer, but decided it simply wasn't worth the effort. You are as enamoured of your idee fixe as Battistelli (perhaps you are him) is of his - not even physicists are as certain about physics as you are about your triangle.

Dilbert said...

... and I quite forgot: As Albert Einstein once said “For every complex question there is a simple and wrong solution.”

No monsters under the bed said...

Dear Grantsalot,

Thank you as I am already familiar with that theory, and in a very real sense, the theory goes hand in hand with the required increase in efficiency that is a hallmark of the theory. I think that you too are somewhat confused from the fact that a different system is being put in place and the older system is just not that attuned to having the required efficiency for the higher wages.

Dear Dilbert,

Thank you for presenting the, um, "logic" that you have (accuse me of being Battisttelli). Clearly, you are unfamiliar with a tool that is so heavily used to such a wide level of success in the real world. I wish you well in the government work that you have pigeonholed yourself into.

fred nurk said...

Efficiency is a factor of input/output , cost per unit, ( obviously must also be balanced against quality of end product). Wage levels in themselves are not a measure of efficiency- in fact low wages can be a sign of the opposite; if you have access to 'serfs' then you have little incentive to spend capital on more efficient plant and equipment.

Anonymous said...

XKCD386

@nomonster
Ok I bite.
What happens when you cannot measure / agree on what is one side of your triangle?
In a bureaucracy it is quite often a problem, because of diverging interestest of the different agents.
I give you one example of a bureaucracy - I remind you bureaucracy does not mean government agency, only big human organisation.
They were recognized for high efficiency, highly paid and happily overworked employees, selected and promoted according to merit, adhesion to modern management theory and on and on.
They went Kaboom.
Who? Arthur Andersen. They forgot their quality was partly , under all the managment speak, a public mandate: certifying accounting. Priorities were distorted by some management view that the firm was a money machine. And by the fact that nobody can ISO 9001 or measure the honesty of a financial report without replicating the amount of time it took to do it.

If you cannot agree on dimensioning the sides of your triangle, how do you feel about your theory?
It is one thing to mesure the quality or efficiency of a food company, one other of a public organisation. Especially where some stakeholders does not participate much to the definition of the product (the applicants) or not at all (the remaining public) , where they do not agree between them (pharma - SME - google- Attorneys), the management has a disproportionate say and quite some perverse incentives, where there is a big time lag between changes and results percolating, and so on.

Sir Grantsalot said...

Dear No monsters under the bed,

Your proposition was: "Lower paid workers - all things else kept the same - are in fact a sign of efficiency"

My counter was: "You are confusing exploitation with efficiency."

Your reasoning was: "I am aware that this does ring in the tones of "exploitation." But that is as it has always been..."

Your argument is flawed: argumentum ad antiquitatem (logical fallacy of appeal to tradition, i.e, things have always been this way)

And your facts are wrong: "give me a definition of 'increased efficiency' in which [exploitation] does not ring out."

I did. The example of Henry Ford demonstrates that you can get greater efficiency without exploiting workers with lower paid wages. But apparently you were already aware of this example. Bravo.

I leave it to fellow readers/commenters to decide whether they agree with your proposition.

I must take leave now to rescue a damsel in distress being held captive in a tower along the Isar.

Nobody Special said...

"No monster under the bed" and his Project Triangle remind me of my 3-year old when he gets a hammer in his hand: Everything becomes a nail!

Patents 25% off today said...

"No monsters under the bed": Leaving aside Virginia and the Luddites, I find the question highly intriguing which identity might be hidden under your ID.

The language you use, in its typical mix of uppity and disdain, is neither attorney-speak nor examiner-speak, but rather the kind of management lingo that EPOites have become accustomed to under the Batistelli rule.

Could it be that the EPO uses applicant fees to pay you to spend your time posting PR comments on public webblogs, to give public opinion a spin?

L'angelo Misterioso said...

One can assume, I think, that No Monsters thinks he will always be among the exploiters, rather than the exploited.

Such people always delude themselves that they deserve their elevated position in life, rather than it often being due to a combination of inherited privilege, toadying, corruption, being in the right place at the right time, being eager to agree with the boss or, sometimes, just sheer luck.

Such people also invariably see the majority of people as losers who deserve to be exploited ("the urban biomass" as the aristocrat and gambler John Aspinall once characterised them) and the poor as people who are poor because they have failed to take themselves by their bootstraps and hoist themselves out of their poverty.

He must love the modern world: all that "efficiency" leading to stagnant wages for the poor and middle classes and increasing wealth for the rich.

Let us thus leave him going round and round his magic triangle until he disappears up his own absurd backside.

Anonymous said...

Is this triangle with three legs (?) the same as Adair's Circles (or is it more a case of Coleman's Balls?)

Wrote H. Bosch

Speculator said...

""No monsters under the bed": Leaving aside Virginia and the Luddites, I find the question highly intriguing which identity might be hidden under your ID. "

Could it be Mr. McGinley that great "knowledge manager" ...?

http://www.ikmagazine.com/xq/asp/sid.0/articleid.E7BB1078-6FD6-42C1-B6E1-D4C8C89B30E0/eTitle.The_knowledge_Ciarn_McGinley/qx/display.htm

Kentze neke said...

I want L'angelo misterioso for President: I love his posts!
See you at the demo.

MaxDrei said...

Posters including 25% and Speculator are wondering who lies behind the "No Monsters" pseudonym. I think I know.

A poster by the Name of "anon" plagues the Patently-O Website. Has done for years. Seems to have nothing else to do but post to patent law blogs.

You will recall postings recently from "US anon". They strike me as coming from the same mind. Now we have the "No Monsters" poster and I see the same giveaway writing style.

The "anon" of Patently-O has an obsessive interest in caselaw. He seizes a particular word string he likes, such as "in a very real sense" and then uses it ad nauseam. I suspect he is autistic. Nothing wrong with that - many patent attorneys Show the signs. But it does make his blogging style a bit tedious, even to the extent of attracting much complaint that it is trolling the blog.

Try not to feed any trolls that discover this blog, please. As you know, a troll wants nothing more than to keep his tedious argument going, ad infinitum.

Dilbert said...

@ no monsters ...
Have you considered the possibilty that you might be completely off the mark when you claim you know what I do for a living? But on the other hand, perhaps you might be right after all - difficult to know, isn't it? :-)
By the way, you never replied to Einstein's proposition :-(

us anus said...

Us in the political management fro the office have seen the examiners for what they really are. Engineering student that think they know better and deserve more.
This is the end for this
My real name is elodie the tragodie

MaxDrei said...

Dilbert, let's see, when "US anon" (or whatever he calls himself when he wakes up this morning) replies.

The "anon" from Patently-O is also an Einstein fan. He is very fond of reminding readers what Einstein said about complexity;

"Everything should be kept as simple as possible, but no simpler."

examiner who does give a... said...

Dear Monster
Could we perhaps return to your statement from yesterday evening (20:48)? You claim a mindset for me along the lines of "quality has to go crap". I prefer to think it must not and I am saddened, but not surprised that you simplify it down to such ideas. I have yet to find a foolproof management system that fits the workforce actually caring what they do (when management doesn't). Unfortunately, if it is to not go crap, then some measures are necessary to prevent this if improved productivity is none the less required. I most certainly do not think productivity cannot be improved without a loss of quality, it can, but I most certainly do think that the improvement will come with better training from people who actually know what a patent is and better tools from people who know how the system works, not from random number generation simply demanding more. If it was up to me (which unfortunately it is not), I would spend much more time getting examiners taught by attorneys so that they see what problems the "other side" is faced with, I would scrap standard clauses so that the examiner needs to think what he writes, I would turn off management's scorecard and divert resources to programming ergonomics, and I would look for a counting system that prioritises a balance of examination and search and doesn't create stupid backlogs that would've been avoided if the examiners were but left to just look after the files they are charged with.
In either this blog or one of the others someone pointed out that the EPO was doing very well until it got a nasty attack of management, and I cannot but agree wholeheartedly. They do go to a lot of trouble to employ capable colleagues and with very few exceptions I am proud to work alongside such people, but one cannot help but wonder why, when they then treat them like mindless idiots who should be made to fit into some kind of management image derived from a totally different environment. Examiners really should not be target meeters, they should be right in what they decide, and they possibly could be unless actively prevented from doing so.

Anonymous said...

A newspaperboy quotes...
BB:“I am not eccentric. It's just that I am more alive than most people. I am an unpopular electric eel set in a pond of goldfish.”
BB:“An eel held by the tail is not yet caught”

Dilbert said...

Bull in a china shop would seem more appropriate ...

Fafnir said...

So, Battistelli thinks he is an eel. Here is a eel story from "Native American Indian Legends - The Chocolate Waters Of The Petitcodiac River - A Micmac Legend":
http://www.firstpeople.us/FP-Html-Legends/The_Chocolate_Waters_Of_The_Petitcodiac_River-Micmac.html

In the beginning, the waters of Pet-koat-kwee-ak were clear and sparkling. But one day Eel swam down from the headwaters, his great body pushing everything before him into the cold of the great bay. Turtle told Glooscap that something had to be done about Eel. So Glooscap instructed Lobster to fight Eel. Lobster drove Eel out into the bay, but so great was the struggle that the once-clear water was disturbed and muddied forever.

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